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A mother "derivatively neglected" a new child based on "sufficiently proximate in time" court orders from April and October 2016 that said she had neglected and derivatively neglected five older siblings of the child, a state appeals court ruled Tuesday.

In its decision pertaining to the new child, an Appellate Division, First Department panel further wrote that the mother "failed to raise an issue of fact as to whether the conditions that led to the siblings being placed in foster care can reasonably be expected to exist currently or in the foreseeable future," citing Matter of Cruz, 121 AD2d 901, 903-904 [1st Dept 1986]), and the panel said that "the affidavit in which she averred that she completed some therapeutic services does not suffice" to raise such an issue, citing Matter of Xiomara D. [Madelyn D.], 96 AD3d 1239.

Derivative neglect in family law generally refers to the concept that when a person is a danger to one child, the person can be a danger to other children, and it is often found when a parent who has been neglectful to a previous child or children has or takes custody of a new child.

The First Department's decision affirmed Bronx County Family Court Justice Sarah Cooper's June 2018 decision that granted summary judgment to the city's Administration for Children's Services, which had petitioned the Family Court alleging that the mother derivatively neglected the new child.

It appears that the effect of Justice Cooper's derivative neglect decision in 2018 may have been to force the mother—whose full name is not given in the First Department's opinion—to give up custody of the new child. That is not clear, though, from the First Department's decision, and Family Court records are not available.

Panel Justices Tom Sweeny, Peter Tom, Angela Mazzarelli, Jeffrey Oing and Anil Singh wrote that "three prior court orders finding that respondent [mother] neglected and derivatively neglected the subject child's five older siblings are sufficiently proximate in time to the instant proceeding to permit the presumption that the conditions that formed the basis for the prior findings continue to exist," citing Matter of Noah Jeremiah J. [Kimberly J.], 81 AD3d 37, 42 [1st Dept 2010], among other cases.

"The derivative neglect findings entered in April and October 2016 were based on respondent's [the mother's] failure to comply with her court-ordered service plan, and none of the siblings who are the subjects of those findings have been returned to respondent's care," the justices wrote.

Hani Moskowitz of Diaz & Moskowitz in Manhattan represented the mother, and she could not be reached for comment on Tuesday.

The city Law Department represented the Administration for Children's Services, and it declined to comment.

The Legal Aid Society of New York represented the new child's interests and could not be reached for comment.